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Time is not a mold. The time you spend reading this column cannot be “reclaimed.” It’s gone and it’s not coming back.
That’s why the proposal for a “talking filibuster” for the United States Senate is such a bad idea.
I wrote the first paragraph knowing full well the jokes it would make – thanks for emphasizing my point by posting a comment along the lines of “That’s five minutes I’ll never get back.” You are right. You won’t find it. Hold that thought. It also applies to the United States Senate.
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Another controversy has arisen regarding the rules of the United States Senate. Debate is welcome as long as it takes place in columns and studios and does not take up “floor time” in the Senate. “Floor time” in the Senate is part time, the most important set. It, too, cannot be taken back once it has passed.
“Floor time” in the Senate is a precious commodity. They are the “rare minerals” of the legal process. Nothing, absolutely nothing, is done in the Senate unless it is done in public, on the floor of the Senate, after all procedural hurdles have been cleared, and there are many such hurdles. The Senate’s charter emerged 161 years after the end of the Civil War to protect the rights of a minority group and certain rights of individual senators. These laws are many and vague, but they all work together to slow down everything the Senate and Congress do.
The Senate is anti-majority and intends to be. It was an important part of the founding of the country. The only part of the Constitution that cannot be amended is the composition of the Senate. Article V concludes with the sweeping statement “that no State, without its Consent, shall be deprived of its equal Consent to the Senate.” Therefore, states like Delaware and Wyoming get two seats in the Senate and so does California. In a recent interview, former President Obama said this needed to be amended, but the former Constitutional Law professor forgot Article V. The Framers created the Senate to “check” the House which is run by the people. Two senators per state provision? That cannot be amended without the consent of all countries.
Among the Senate’s many traditions is one that protects “unfettered debate,” a feature, not a bug, woven deep into the fabric of the institution. The House has strict time limits on debate but not the Senate. All proceedings in the Senate must proceed by unanimous consent or, otherwise, very little, if at all.
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For much of our country’s history, the Senate is where landmark legislation is made because the culture of unlimited debate and the laws that protect minority power go hand in hand.
That’s a good thing. The Senate’s rules on debate and legislation force that consensus or, in the absence of a significant consensus, a conflict is seen in the public that may postpone the election depending on how much visibility the deadlock produces, and how that blur is perceived by the voters. The Senate does not need to pass bills for state negotiations to move forward.
Democrats tried to argue in 2024 that Republicans had blocked the necessary legislation to close the border. Their conflict not only failed, it failed spectacularly, and President Donald Trump and a 53-47 Republican Senate and GOP House majority headed into the November 2024 election. Voters are smart.
(And it turns out that legislation wasn’t needed to close the border. President Trump did so without a new authorization from Congress.)
Whenever one group of activists from either side of the political spectrum, in fact, really wants something, the Senate rule that requires 60 votes to proceed with consideration of a bill creates heartburn among those activist groups and senators who agree with them. That 60-vote threshold is often called a “filibuster.” Like clockwork, calls from either the most frustrated Democrats or the most frustrated Republicans are issued to end or at least “reverse” the filibuster whenever frustrations over the rulemakings rise.
Right now, many Republican senators really want to pass the “LAST Act” – the “American Voter Protection Act” – and some of them want Majority Leader John Thune to remove the laws that protect the minority party by ending the filibuster, or at least change the laws under which the filibuster operates. Utah Senator Mike Lee currently opposes such a change. Lee wants filibusters to “talk filibusters.”
Kimberly Strassell of the Wall Street Journal has detailed why the “talking filibuster” is an incredibly bad idea and I recommend her work to you. (The Journal is a sister publication to this one.) Strassel’s piece argues why a filibuster is a bad idea. But I have a short answer of “No. Not now. Not ever. No” to the talking filibuster.
14 years ago, it was Oregon Democrat Jeff Merkley who wrestled with “The Talking Filibuster” in a December 12, 2012, memo to his 99 colleagues. (Merkley tends to score as one of the ten most liberal members of the Senate.) If Merkley is against changing the rules, just vote no. It’s that simple.
“When the filibuster is used routinely, it becomes a tool to destroy the law,” Merkley said more than a decade ago. Republicans were in the minority at the time, and used the filibuster to slow or stop President Obama’s legislative agenda. “This paralysis is unacceptable,” Merkel said.
It’s not just that “disability” was unacceptable. It was urgently needed, and bravo to then-GOP Senate Leader Mitch McConnell for organizing the Republican caucus to block the agenda of then-President Obama, the man who used the majority of his 60-member passing party to get Obamacare into a nation that trusted him.
Merkley argued and argued in 2012, but did not persuade him. The legislative filibuster — the 60-vote limit — still exists and there is no “speaking filibuster.”
Finally, the late Harry Reid, then the Senate Majority Leader, would invoke the “nuclear option” to change the Senate’s rules on voting for legislative nominees to a simple majority vote. The result of Reid’s power play was the most dramatic reversal in Senate history, with 3 of President Trump’s nominees confirmed to the Supreme Court by less than 60 votes.
Senator Mitch McConnell warned Reid not to change the rules. Reid ignored him, and because of that we have a lot of “origin” at Court. Every time progress comes out with a Supreme Court decision, remind them that it’s all because of Harry Reid.
Which brings me back to “down time” in the United States Senate. Loyal supporters of the filibuster filibuster will accept the change in their view that the Senate will eat up large bodies of limited “floor time.” The Senate majority leader controls the calendar as well as floor time. The speaker can take that control away from him and give it to a small group to get slabs while the Senate is in session. “Like sands in an hourglass” the hours and days and weeks the Senate will have to do its business will go.
A business that includes lifetime appointments in federal courts. There are currently 37 vacancies in the federal courts. There are only three of the 37 nominees, but President Trump has never met a judicial vacancy that he did not try to fill because he knows that honest judges are the ones who are responsible for his domestic policy. He and his team of judicial nominees must raise their bar and when they do, every district court nominee will need at least two hours of floor time and every appellate court nominee will need up to 30 hours of floor debate. If there is a retirement – or two – from the Supreme Court this spring? A thirty-hour debate after each party closed would be necessary and would only begin after what would inevitably be incredibly long and contentious hearings and proceedings.
That is the time required for judges and juries. Every nominee for every job that requires Senate confirmation will also take time, from two hours for obscure nominees to 30 hours for prominent Cabinet nominees. If President Trump is to continue to serve in the Executive Branch, he will need Major General John Thune to run the Senate for the rest of his term.
President Trump and Supreme Leader Thune have worked very well together since “45” came back as “47.” The “Working Families Tax Cut,” dubbed “One Big Beautiful Bill,” is a huge success, the best proof of that, but so are 11 of the 12 bills the president has signed — a victory for “common sense” that hasn’t been seen in decades. The massive financial costs of military reconstruction have only just begun. It really needs another National Defense Authorization Act (“NDAA”) and another Department of Defense funding bill. These and other urgent, but routine, Senate business are all before the Senate GOP.
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If a “talking filibuster” were to change the rules — highly, highly unlikely, but concede that point for a moment — the GOP would regret it just as Democrats reviled the “Reid Rule” for changing the votes needed to confirm the court. The “talking filibuster” will haunt the GOP convention just as the ghost of Harry Reid haunts all Democrats’ discussions about the Supreme Court.
Reclaim your reading time now, but if the topic of “talking filibuster” comes up, remember that in the first place it was a Democratic idea put forward to provide Barack Obama’s leftist vision of the country. And he just says, “No.”
